Professor Gregory McNeal, JD/PhD, is an expert in law and public policy with a focus on security, technology and crime.
His current research projects include a book focused on the investigation and prosecution of national security crimes (under contract with Oxford University Press), a book about targeted killings (grant funded), and a book about the emergent civilian drone market. His law review articles have been published by or are forthcoming in The Georgetown Law Journal (winner of an article of the year award), The Northwestern University Law Review Colloquy, The Washington and Lee Law Review, and The Harvard Journal of Law & Public Policy among others. He is a co-author of the casebook Anti-Terrorism and Criminal Enforcement (with Norman Abrams, 4th Edition Supplement and 5th Edition), co-editor of Saddam On Trial: Understanding and Debating the Iraqi High Tribunal (with Michael Scharf) and is the editor of a forthcoming treatise Cybersecurity and Privacy.
He has testified before Congress about drones, surveillance, and counterterrorism and has also aided members of Congress and their committees in drafting legislation. Previously, he served as assistant director of the Institute for Global Security, served as an advisor to the Chief Prosecutor of the Department of Defense Office of Military Commissions on matters related to the prosecution of suspected terrorists held in the detention facility in Guantanamo Bay, Cuba, and co-directed a U.S. Department of Justice counterterrorism program. He has consulted with the Department of Defense on a range of issues, including helping to draft a manual aimed at reducing harm to civilians in conflict, and advising on matters related to cybersecurity.
Dr. McNeal has also advised Fortune 500 companies and the defense industry on matters related to drones, privacy, surveillance, and homeland security. Before becoming an attorney he served as an officer in the United States Army. His popular writing has appeared in publications such as The New York Times, The Washington Times, and The Baltimore Sun, and he has appeared on MSNBC, Fox News Channel, CNN, NPR, NBC Nightly News, BBC, C-SPAN, and other national media outlets as an expert commentator on security, technology and crime. As a Forbes contributor he writes about law and public policy and is one of the nation’s top law professor bloggers based on the Law Prof Blog Traffic Rankings. You can follow him on Twitter @GregoryMcNeal and on Facebook at GregorySMcNeal.

A Primer on Domestic Drones: Legal, Policy, and Privacy Implications

The domestic use of drones is a popular topic following Congress’ recently passed FAA Modernization and Reform Act of 2012. The act provides funding for the FAA over the next four years, but the portions of the bill (§§ 331-336) that herald the possibility of expanded access to U.S. airspace for unmanned aircraft systems (UAS’s) are drawing the most attention. A number of organizations have criticized this portion of the bill as setting a dangerous precedent that will pave the way for government and private parties to trample on privacy rights. The ACLU, for example, has been quite vocal in its criticism of this portion of the bill, releasing a report and a series of tweets to demonstrate their concerns over the prospect of intrusive aerial surveillance without proper safeguards. While a robust public debate over the bill and the domestic use of drones is warranted, the conclusion that widespread privacy violations are imminent is premature.

The ACLU and other organizations believe the approach followed by Congress fails to adequately address the privacy and civil liberties concerns which were largely ignored by the bill and were not discussed during the Senate’s floor debate. Dozens of signatories, led by the Electronic Privacy Information Center (EPIC), have sent an open letter to the FAA Administrator petitioning the federal government to address their privacy concerns. Proponents of the bill (supporters of expanded drone use in general) argue that privacy concerns are overblown and result from unfamiliarity with drone technology and current air regulations. David Uberti’s informative article posted on Medill National Security Zone helpfully summarizes some of the opposing viewpoints. As summarized by Ben Geilom, government relations manager for the Association for Unmanned Vehicle Systems International, [who] said “current regulations for manned aircraft should extend to their unmanned counterparts. ‘The aircraft itself…is new and maturing,’ he said. ‘But the systems payload – the cameras and sensors that are on the unmanned system – are not new. In fact, they have been used by law enforcement and others on manned aircraft for decades.’”

Under current law drones are restricted to flying in specifically designated airspace. However some domestic uses of drones have already occurred, including access to military airspace, border patrol (both with Mexico and Canada), intelligence gathering on Mexican drug cartels, and use by a number of public agencies for research and, under special circumstances, law enforcement purposes. In the March/April issue of Foreign Policy, Micah Zenko notes:

As of October, the [FAA] had reportedly issued 285 active certificates for 85 users, covering 82 drone types. The FAA has refused to say who received the clearances, but it was estimated over a year ago that 35 percent were held by the Pentagon, 11 percent by NASA, and 5 percent by the Department of Homeland Security (DHS). And it’s growing. U.S. Customs and Border Protection already operates eight Predator drones. Under pressure from the congressional Unmanned Systems Caucus — yes, there’s already a drone lobby, with 50 members — two additional Predators were sent to Texas in the fall…

As a side note, the Unmanned Systems Caucus isn’t a lobbying group, they’re the people one should lobby, the lobbying group is probably the very interesting Association for Unmanned Vehicle Systems International referenced above. Nevertheless, giving drones expanded access to U.S. airspace certainly raises a number of difficult questions—but if the trigger for those difficult questions is the FAA Act, we should look first to what the bill calls for. While it seeks the integration of unmanned aircraft into U.S. airspace by September 30, 2015, most of the provisions dealing with unmanned aircraft seek to implement a very broad framework under which the FAA can explore the uses and feasibility of such a program. The key sections direct the Secretary of Transportation and the Administrator of the FAA to draft plans, standards, and rules to ensure that drone integration proceeds in a safe and legal manner. This is a public process where civil liberties and privacy groups will no doubt have a voice in crafting rules, and that voice seems to be at least as effective as the industry association’s voice.

Furthermore, the bill directs the Secretary of Transportation to develop a “plan to safely accelerate the integration” of both public and civil UASs into the national airspace system. Public UAS’s includes those used by governmental agencies and departments. Civil on the other hand, refers to UAS’s operated by private companies. The plan must address among other things, operational standards for drones (with a specific focus on “sense-and-avoid” capabilities) and standards for operators and pilots who will be manning the systems. Integration is to proceed in a phased approach whereby the FAA Administrator must establish a program to test the feasibility of unmanned aircraft expansion at 6 test ranges, which are yet to be selected. The FAA has even asked the general public to provide commentary on the selection process for test sites. As the LA Times reports, “The FAA has asked the public to weigh in on issues such as ‘public versus private management of the sites, research activities and capabilities of the test areas, the requirements for test site operators, and the geographic and climate factors that should influence site selection.’”

So what types of uses might we see in the future? The most obvious role drones can play is in assisting law enforcement. Currently, law enforcement agencies are allowed to use drones in special circumstances. The first reported case of a drone being used by local law enforcement took place in North Dakota where a sheriff asked for and received the help of an unarmed MQ-9 Reaper to assist in apprehending several individuals suspected of cattle rustling. Also, other local law enforcement agencies, as well as the FBI and DEA, have borrowed Customs and Border Protection drones. A number of law enforcement agencies have expressed interest in acquiring drone technology (and some have already done so) for use on a more routine and even permanent basis. As the website WND.com points out, “the Miami-Dade Police Department has purchased a Honeywell T-hawk drone, the Montgomery County sheriff’s office in Texas bought a ShadowHawk, and drones also are in use by police in South Carolina and Colorado.” The newly passed bill would expedite these types of acquisitions. In fact, section 334(c) of the bill directs the Secretary of Transportation to enter into agreements with appropriate government agencies to simplify and expedite the process to get governmental agencies certified to operate public unmanned aircraft.

Commercial drone use is also on the horizon. As my Forbes colleague Kashmir Hill has already noted, a company like Google might supplement or even swap out their “Street View” mapping feature with an aerial drone view. The Washington Post predicts we will likely see an increase in media and private individuals using drone technology for journalistic purposes. Some have even expressed interest in launching what Kashmir has dubbed the “paparazzi drone.” Drones will likely be used for TV ads and Hollywood will presumably want to use drones to shoot movies. Several real estate firms have hired photographers who use drones to photograph properties from an aerial perspective and farmers have even utilized drone technology for crop dusting and a number of other purposes.

What about private individuals building their own drones? As Francis Fukuyama has discovered, building one’s own personal drone might not be as difficult as it sounds. Fukuyama explains that he was “inspired by products like the AeroVironment RQ-11 Raven,” a drone I recently wrote about after it was featured in the new film Act of Valor. We will have to wait and see what kinds of regulations accompany future use of privately owned drones. For now however, the bill precludes the FAA Administrator from regulating model aircraft use so long as the owner takes basic safety precautions. In fact, the bill expressly states that the FAA Administrator “may not promulgate any rule or regulation regarding a model aircraft, or any craft being developed as a model aircraft.” In other words, the bill does not necessarily apply to very small drones that conform to certain safety regulations and are flown strictly for hobby or recreational purposes. (No doubt this was a big win for the hobby lobby?)

John Villasenor, a senior fellow at the Brookings Institution, recently sat down with NPR to discuss a wide range of issues on drones in general and Congress’ new bill in particular. Villasenor reminds the listener that the word drone is really just a catchall term, which in fact refers to a number of different UASs that vary in size, shape, form, speed, and a whole host of other attributes. He elaborates pointing out that there are drones that are “jet powered…drones that are solar powered that are very large but extremely light and can fly for months and years at a time at extremely high altitudes…[and] drones that can fit literally in the trunk of a car or in a backpack or even the palm of a hand. Some of these drones can weigh 10 pounds, 5 pounds, less than 1 pound, [or even] a few ounces…There are [also] drones that are basically like balloons that sit up in the sky in one place and can observe for long periods of time enormous swaths of territory.” To cite just one example, Villasenor highlights a new drone being developed by Boeing called the Solar Eagle, “which is designed to be able to fly for five continuous years at a time at stratospheric altitudes.”

The fact that the term “drone” refers to so many platforms becomes particularly relevant when one considers future projections. For instance, when asked about the prospect of having 30,000 UAS’s (a rough projection given by the FAA) operating in the national airspace years from now, Villasenor replied, “It’s possible. Again, part of the answer to that depends on what we really mean by ‘drones.’ Will we have 30,000 Predator-style large drones doing surveillance? I doubt that very much but if you include these smaller backpack-sized or trunk-sized surveillance drones, that in fact could happen.” Again, a lot of this will depend on the rules and regulations formed in the coming years.

In terms of privacy invasions for your average citizen, Villasenor acknowledges the legitimacy of these concerns. However, I think it’s important to note his belief that it’s not solely about the information drones can gather. Rather, Villasenor contends that drones raise new concerns over the type of information they can collect. In other words, drones might raise unique privacy concerns because of their ability to gather information from a particular “vantage point” which is distinguishable from the data we accumulate through our cellular phones or Internet searches.

Of course, the bill does not define with specificity the degree and nature of expansion of UAS’s in U.S. airspace and perhaps this lack of specificity and fear of the unknown is driving much of the early stages of the debate. Already a number of civil liberties groups have concluded that watchful eyes in the sky will be privy to intimate details concerning the private lives of everyday Americans. While this conclusion is premature their caution is warranted. However, rather than viewing The FAA Act as a harbinger of privacy invasions to come, it is best viewed as a prudent first step in a public discussion of the role that drones will one day play in the U.S. If the energetic public debate thus far is any indicator, this policy issue will likely land back in the hands of legislators — the only question is whether it will be a soft landing that takes account of a wide range of public views, or a crash landing that tries to dodge accountability.

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I’ve gathered a timeline on the development of unmanned aerial vehicles since the mid 80s until today. My timeline demonstrates how development began in the military sector and slowly it was enhanced by civilians. Please see my timeline at http://www.uadrones.net/ .

Drones will be deployed in agriculture, forestry, oil & gas, surveys, mapping, land management drainage, environmental, and multitude of other positive uses. Drones will be used by a few in not so benign uses.

Just like every major technological advance.

The Internet helped to boost communications and at the same time it helped to spread pornography.

The FAA’s ban on civil/commercial use of UAS’s is based on FAA policy. Many cease and desist orders have been issued on this basis. Since no specific regulations exist at this time for commercial uses, can civil penalties be assessed based on FAA policy alone?

And what happens when one of these “journalists” puts up a drone and it gets in the way of a rescue chopper coming in? That’s already happened. Only a matter of time before there is some drone-fed aviation disaster of some sort if it’s not coordinated by SOME means of communication FAA or otherwise.